1. The question raised in this appeal is whether the respondents are tenants. There were some proceedings before the revenue officers which went up to the Board of Revenue under the provisions of chap. 7A, Ben. Ten. Act. The respondents were successful and the plaintiffs then instituted the present suit for ejectment. The allegation of the plaintiffs is that the defendants have no right to hold the land. Now, I entirely agree with Mr. Mukherjea that the proceedings before the revenue officers were entirely misconceived. They have no real legal effect at all. According to the plaintiffs the respondents are mere labourers. In such a case this chapter would not apply. According to the respondents themselves they are tenants who have been wrongfully and forcibly ejected by the plaintiffs. In this case also this chapter would not apply. The ordinary law gives protection to tenants who are improperly and forcibly ejected from their land, and no special provisions are necessary. The actual effect of these proceedings was that the respondents were the defendants instead of the plaintiffs in the inevitable litigation which followed. I shall discuss later on the inference which Mr. Mukherjea seeks to draw from this fact.
2. The case really depends upon the interpretation of the order made on behalf of the plaintiffs on the document, Ex. I. That document is a petition for settlement of 4 arahs of land. The grant was actually made in these terms. Bhag-settlement for three years, 6 mds. of paddy per arah be given. The Courts below have differed in the interpretation of this document, but in my judgment the decision of the learned Subordinate Judge is correct. Mr. Mukherjea relied upon the proviso to the definition of 'tenant' in Section 3 (17), Ben. Ten. Act. The decision of a Division Bench of this Court in Suresh Chandra v. Mohendra Chandra : AIR1931Cal91 , is an authority for the proposition that the proviso is not retrospective in effect. That decision is binding on me, even though I might not be prepared to concur in it without further consideration. This proviso was not in existence at the time when the present settlement was granted. The plaintiffs made no attempt to bring the case within Section 116, Ben. Ten. Act. There is therefore nothing to support their case except the mere use of the word 'bhag-settlement.' It is quite impossible to say that the use of the word 'bhag-settlement' is inconsistent with a tenancy. The defendants are bound to pay 24 mds. of paddy per annum irrespective of what crop is actually grown and irrespective of whether there is any crop or not. This is quite incompatible with the ordinary ideas of bhag-shashi. The only reasonable interpretation of this document is that the defendants are tenants holding at a produce rent.
3. Mr. Mukherjea however contended that the plaintiffs are entitled to a decree on the ground that the proceedings in the Revenue Courts were misconceived. They certainly asked for a declaration that this decision is null and void. But they can only get a decree for ejectment on obtaining a declaration that the defendants are not tenants. Now that it has been established that they are tenants, they cannot be ejected merely because they succeeded in regaining possession by an improper order of some Government officer. Even if I were to hold that the decision of the Subordinate Judge is wrong, the respondents are now protected by Regulation No. 1 of 1941 which has come into effect during the pendency of this appeal. Mr. Mukherjea tried to escape from it in the following way. When it came into force there was a decree in his favour. He alleges that that decree has been executed. In such circumstances it could not be said that the respondents held or cultivated the disputed land without a remand order to obtain further evidence. Now, it may be that the respondents have delivered up possession as a result of execution proceedings. They will however be entitled to be restored in restitution. Though it might be said that they are not cultivating the land at the present moment, it would be perfectly idle to say that they do not hold it. The appeal is accordingly dismissed. As the defence of the respondents was undertaken by the Government I make no order as to costs.